Motion to Strike or Tax Costs (Judge Deborah C. Servino)


Plaintiff N.M. Son’s (“Plaintiff”) motion to strike or tax the costs of Defendant Michael D. Schwartz, D.O. (“Defendant”) is denied.

The right to recover costs of suit is determined entirely by statute. (Code Civ. Proc., § 1032 et seq.)  Unless otherwise expressly prohibited by statute, a prevailing party is entitled to recover costs as a matter of right. (Code Civ. Proc., § 1032, subd. (b).)  Code of Civil Procedure section 1033.5, subdivision (a) specifies cost items that are allowable, including filing and motion fees, deposition costs, and court reporter fees.  (Code Civ. Proc., § 1033.5, subd. (a)(3).) Allowable costs “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount.” (Code Civ. Proc., § 1033.5, subd. (c).)

If the items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary. (Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at pp. 774-776; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266 [mere statements in points and authorities and declaration of counsel insufficient to rebut prima facie showing]; see Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 777-778 [prevailing defendant properly awarded its photocopying costs which were supported by invoice from copy company, when plaintiffs failed to present any evidence showing that copying could have been done for less]. On the other hand, items that are properly objected to are put in issue, and the burden of proof is on the party claiming them as costs. (Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at pp. 774-776.)

It is undisputed that Defendant is the prevailing party. His summary judgment motion directed at Plaintiff’s Second Amended Complaint was granted on April 1, 2022.  (4/1/2022 Minute Order.)  On April 28, 2022, Defendant Michael D. Schwartz, filed a memorandum of costs, claiming a total of $5,375.30 in costs.  The costs are comprised of: (1) filing and motion fees in the amount of $1,255; (2) deposition costs in the amount of $2,931.60; (3) service of process costs in the amount of $488.70; and (4) court reporter fees in the amount of $700.  (Register of Actions [“ROA”] 481.)

Plaintiff argues that the memorandum of costs was untimely filed.  This argument lacks merit.  Notice of entry of judgment was served on April 25, 2022.  (ROA 472.)  The memorandum of costs was filed on April 28, 2022.  Therefore, the memorandum of costs was timely filed.  (Cal. Rules of Court, rule 3.1700.)

The remainder of Plaintiff’s arguments are that Defendant did not support his claimed costs with any invoices, bills or declarations. There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum.  (See Wegner et al., Cal. Practice Guide: Civ. Trials & Evid. (The Rutter Group 2016) ¶ 17:131.1.)  Plaintiff does not go into any detail or elaborate further on how the costs are allegedly unreasonable.  In County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113–1114, the court held the following:

In this case defendant submitted no affidavits in support of her motion to tax costs. Defendant merely alleged that the depositions were neither necessary nor reasonable under the circumstances. Opposed to this was the county’s declaration under penalty of perjury that each item in the cost bill was reasonably incurred. In this situation, defendant has not met her burden of showing that the depositions were unnecessary.

Similarly, Plaintiff fails to meet his burden as the party challenging the costs.  On their face, Defendant’s costs appear proper.  Plaintiff has not shown that these costs are improper on their face.  (Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 774 [“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that were not reasonable or necessary.”].)  Plaintiff did not meet his burden to show the costs were unreasonable or unnecessary.  Accordingly, the motion is denied.

Defendant is awarded $5,375.30 in costs

Defendant shall give notice of the ruling.